Human Rights and Health

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Human Rights and Health

• FOCUS ON REFUGEES AND MIGRANTS

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International Legal Framework of the Right to
Health for Refugees

• Several interrelated fields of international law
  are involved in discussions of the rights to
  health of refugees and internally displaced
  populations. The 2 most important are
•  
• Refugee law
• General international human rights law
•  
• In each field, the body of law is made up of
  treaties, which create binding obligations for
  the countries that have ratified them.

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REFUGEE LAW

• The Geneva Refugee Convention requires countries
  to treat refugees lawfully staying in their
  territory the same as their nationals are treated
  with respect to social security schemes,
  including those covering maternity and sickness
  (Article 24(1) b).
• For refugees who do not meet the criterion of
  "lawful stay" and for non-Convention refugees,
  UNHCR works to guarantee that they will be
  treated no worse than foreigners are usually
  treated by that state (Article 7(1)).
• With respect to health, this can often mean
  little if any access to national health services.
  

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General international Human Rights Law

• Everyone has the Right to Seek and Enjoy in Other
  Countries, Asylum from Persecution.
• Article 14, UDHR
• http//www.un.org/en/documents/udhr/index.shtmla1
  4

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What are Human Rights?

• Human rights are legally guaranteed by human
  rights law, to protect individuals and groups
  against actions of the state that interfere with
  fundamental freedoms and dignity
• Enshrined in the 1948 Universal Declaration of
  Human Rights (UDHR)  
• Human Rights encompass what are known as civil,
  political, cultural, economic and social rights
  that were codified in the following legally
  binding treaties (1966)
• The International Covenant on Economic, Social
  and Cultural Rights (ICESCR)
• The International Covenant on Civil and Political
  Rights (ICCPR).

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What does the ICESCR say?

• Part 1 (Article 1) recognises the right of all
  peoples to self-determination,
• Part 2 Principle of "progressive realisation
  (Article 2-5). It acknowledges that some of the
  rights (for example, the right to health) may be
  difficult in practice to achieve in a short
  period of time, and that states may be subject to
  resource constraints, but requires them to act as
  best they can within their means
• Part 3 (Articles 6 15) lists the rights
  themselves. These include rights to
• Work, social security, including social
  insurance,family life, adequate standard of
  living
• Right to highest attainable standard to health
• http//en.wikipedia.org/wiki/Right_to_health
• Right to free education, participation in
  cultural life

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What does the ICCPR say?

• These include rights to
• physical integrity, in the form of the right to
  life and freedom from torture and slavery
• liberty and security of the person, in the form
  of freedom from arbitrary arrest and detention
• Procedural fairness in law, rights to due
  process, fair trail, presumotion of innocence
• Individual liberty, in the form of the freedoms
  of movent, thought, conscience, religion, speech,
  association, family rights, right to a
  nationality, the right to privacy
• Prohibition of any propaganda for war, of
  national or religious hatred, incitement to
  discrimination, hostility or violence by law
• Right to political participation, including the
  right to join a political party, right to vote
• Non-discrimination, minority rights and equality
  before the law

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Health as a Human Right

• The enjoyment of the highest attainable standard
  of health has been recognised as a fundamental
  right since the adoption of the World Health
  Organisation (WHO) Constitution in 1946 and since
  then it has been recognised by various
  international human rights treaties.

http//www.who.int/governance/eb/who_constitution_
en.pdf
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Health as a Human Right

• Since then it has been recognised by various
  international human rights treaties e.g. ICESCR
• The right to the highest attainable standard of
  health is a claim to a set of social arrangements
  - norms, institutions, laws, an enabling
  environment - that can best secure the enjoyment
  of this right

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Other HR Instruments guaranteeing the Right to
Health

• The International Convention on the Elimination
  of all Forms of Discrimination December 21st ,
  1965 (entry into force January 4th , 1969)
•  
• The Convention on the Elimination of All Forms
  of Discrimination Against Women,December 18th,
  1979 (entry into force September 3rd, 1981)
•  
• The Convention on the Rights of the Child
  November 20th, 1989 (entry into force September
  2nd, 1990)
•  
• The International Convention on the Protection
  of the Rights of All Migrant Workers and Members
  of Their Families (entry into force July 1st,
  2003)

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What does the Right to Health Mean?

• The two main components are
•  
• 1. Elements related to healthcare
• 2. Elements concerning the underlying
  determinants of health which may include a
  healthy environment, safe drinking water and
  adequate sanitation, occupational health and
  access to health related education and
  information.
• Consensus among scholars that the meaning and
  scope of the right to health lacks conceptual
  clarity. This in turn hinders its implementation
  and the subsequent monitoring of states
  practices by international treaty monitoring
  bodies.

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Question Why is migrants health an issue and
why is it a human rights issue?

• Migrants as a vulnerable group due to
• Bias against foreigners stereotypes, racism,
  xenophobia
• Under-representation in power structures
• Perceived or de-jure distinctions between
  citizens and non-citizens can lead to the belief
  than only citizens have rights
• Impact of the economic crisis and terrorist
  violence on social attitudes towards migrants and
  realisation of their rights

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Migrants vulnerability related to a number of
barriers and problems which affect their
enjoyment of the right to the highest attainable
standard of health

• Migrants may be disadvantaged and discriminated
  against in relation to health determinants and to
  accessibility to adequate health care services
• Evidence of migrants poorer health outcomes
• Migrant workers frequently concentrated in 3-D
  jobs
• Occupational health risks and injuries high in
  this context
• Migratory or legal status may constrain or
  obstruct health service use
• Undocumented migrants fear arrest or deportation

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Migrants as rights holders and States as duty
bearers

• Human rights are principally concerned with the
  relationship between the individual and the state
•  
• Governmental obligations with regard to human
  rights broadly fall under the principles of
  respect, protect and fulfill
• International human rights instruments explicitly
  recognize that human rights, including specific
  health-related rights, apply to all persons
  including migrants, refugees and other non
  nationals.
• Many provisions are recognized as applicable to
  all migrants, regardless of legal status.

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General Comment No. 14 (May, 2000)
Clarification of the scope and content of the
right to health
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General Comment No. 14 Issued May, 2000

• Provides direction for the practical application
  of Article 12 of the CESCR and outlines a
  monitoring framework.
• http//www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2
  000.4.En 
• It distinguishes between four essential features
  of health services
•  
• Availability
• Accessibility
• Acceptability
• Quality of health services

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States Obligations to Respect the Right to Health

• Particular attention should be paid to vulnerable
  and marginalized groups. General Comment 14
  paragraph 34 specifies inter alia that states
  must
• refrain from denying or limiting equal
  access for all persons including prisoners or
  detainees, minorities, asylum seekers and illegal
  immigrants (emphasis added), to preventative,
  curative and palliative health services
  abstaining from imposing discriminatory practices
  as a State policy and abstaining from imposing
  discriminatory practices relating to womens
  health status and needs.